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A member of this court's bar who "has been suspended or disbarred from
practice in any other court" is subject to reciprocal discipline. Fed. R.App. P.
46(b)(1)(A). An attorney who has been so disciplined must promptly inform
this court of the disciplinary action. 1st Cir. R. Att'y Disciplinary Enforcement
(Discip. R.) II.A. Upon receiving official notice of such discipline, the Chief
Judge will refer the matter to a disciplinary panel appointed by him or her.
Discip. R. II.B, V.A. The clerk of the court then serves the respondent attorney,
personally or by certified or registered mail, with an order to show cause why
substantially similar discipline should not be imposed. Discip. R. II.B.2. The
order must contain a statement informing the respondent attorney that any
forthcoming request for hearing on the question of reciprocal discipline shall be
As a general rule, discipline similar to that imposed in the state court will be
imposed in a reciprocal proceeding. Exceptions may arise if this court finds (i)
a deprivation of procedural due process (usually defined as a want of notice or
opportunity to be heard), (ii) an infirmity of proof of misconduct such as would
"give rise to a clear conviction on our part that we could not consistently with
our duty accept as final the [state court's] ultimate conclusion," or (iii) the
existence of some other serious impediment to acceptance of the state court's
conclusion. Selling, 243 U.S. at 51, 37 S.Ct. 377. This framework has been
memorialized in Discip. R. II.C, which provides that, in reciprocal disciplinary
matters, the panel will impose substantially the same discipline as was imposed
by the original court unless it is persuaded:
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1. that the procedure used by the other court was so lacking in notice or
opportunity to be heard as to constitute a deprivation of due process; or
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In addition to considering the state court record, this court will ordinarily afford
the respondent attorney a hearing, if requested. In exceptional circumstances
(and upon a proper showing), an evidentiary hearing may be granted in the
panel's sole discretion. In the usual case, the hearing will be on the papers,
supplemented by oral argument addressed to the respondent attorney's specific
challenges to the conduct and outcome of the state proceedings. See In re
Jafree, 759 F.2d 604, 605 n. 1 (7th Cir.1985). The purpose of the hearing is not
to afford the respondent attorney "an opportunity to retry the state case," id.,
but, rather, to afford him an opportunity to explain his position more lucidly to
the disciplinary panel.
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When all is said and done, the respondent attorney must carry the devoir of
persuasion, by clear and convincing evidence, that imposition of reciprocal
discipline is unwarranted. Surrick, 338 F.3d at 232; In re Kramer, 282 F.3d
721, 724 (9th Cir.2002); In re Friedman, 51 F.3d 20, 22 (2d Cir.1995). Given
the limited nature of our inquiry, the norm will be for this court to impose
discipline which is substantially similar to that imposed by the state court. See
Hoare, 155 F.3d at 940.
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In the case at hand, the show-cause order satisfied all applicable requirements,
including those enumerated above. The respondent attorney filed a reply and
We have nonetheless examined his response with care. The only cognizable
infirmity that he alleges is that the State of Maine denied him due process.1 In
this context, however, due process concerns are limited to "want of notice or
opportunity to be heard." Selling, 243 U.S. at 51, 37 S.Ct. 377. The respondent
has proffered no credible evidence that the notice actually given was
inappropriate or that the state did not afford him a constitutionally sufficient
opportunity to be heard. Thus, his due process claim fails.
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So Ordered.
Notes:
1
The respondent attorney's other claims are forfeit because he has failed to
supply this court, despite several requests, with material portions of the record
of the state court disciplinary proceeding